Musahar Sahu and Another vs Kishun Narayan Prasad and Another

Das, J.—On 30th November, 1915, the respondents obtained a decree for costs as against the appellants for Rs. 2,657, more or less. On the 31st March, 1928, they applied for execution of the decree. The application was resisted on the ground that it was barred by limitation. The learned Subordinate Judge has taken the view that the application is within time and has directed execution to proceed. The judgment-debtors appeal to this Court.

Now it appears that one of the decree-holders was a minor who attained majority in October, 1918. The learned Subordinate Judge refers to Section 7, Limitation Act and says that as one of the decree-holders was minor and valid discharge could not be given without the concurrence of the minor, time did not run as against any of them until the minor decree-holder had attained majority. He has also referred to Article 183 in support of his conclusion that the application is well within time.

It appears to me that Section 7 does not help the decree-holders in this case for it is clear that that section is controlled by Section 8 which provides that: "Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emption or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made".

Illustration (b), Section 8 is very clear on the point. That illustration runs as follows:

A right to sue for an hereditary office accrues to A who at the time is insane. Six years after the accruer A recovers his reason. A has six years under the ordinary law from the date when his insanity ceased within which to institute a suit. No extension of time will be given him u/s 6 read with this section.

I am of opinion, therefore, that if the case had to be decided on the terms of Section 7 read with Section 8, there would be no escape from the conclusion that the application is barred by limitation since as I have already stated the minor decree-holder attained majority in October, 1918, and the present application was not presented till 31st March, 1928.

But it seems to me that Article 183 is directly in point. Now the application is an application to enforce an order of His Majesty in Council and is, therefore, governed by Article 183, Limitation Act. That Article makes it quite clear that limitation begins to run from the date "when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right."

Now the words "capable of releasing the right, obviously exclude persons who are legally incapacitated such as infants and lunatics: See Hornsey Local Board v. Monarch Investment Building Society (1890) 24 Q.B.D. 1 : 59 L.J.Q.B. 105 : 38 W.R. 85 : 61 L.T. 867 : 54 J.P. 391. That was a case decided under the real Property Limitation Act, 1874, and precisely the same words fell to be considered by the Court and the learned Judges had no difficulty in coming to the conclusion that the words in the English section, namely: "to some person capable of giving a discharge for or release of the same" were inserted in order to exclude persons who were legally incapacitated such as infants or lunatics. A. P. Upadhya contends that Article 183 is to be read with Sections 6 and 7 and, therefore, it must be read as controlled by Section 8. I am unable to agree with this contention. Article 183 is self-contained and if reference is made to Section 8, Limitation Act, it will be noticed that it expressly controls Sections 6 and 7. In this view I think the learned Subordinate Judge was right in coming to the conclusion that the application was within time.

I would dismiss this appeal with costs.

James, J.

I agree.